Allegations of simulated and actual child pornography in Second Life have attracted the attention of mainstream international press outlets including the BBC, the CBC, and Australia’s The Age. Linden Lab says that it is cooperating with authorities, and that it has banned the accounts of two users (a 27 year old woman and a 54 year old man) who controlled avatars which appeared to be involved in simulated sexual acts between an adult and a minor.

The reports all stem from a German television news story that ran on a show called Report Mainz on Germany’s ARD network. The report itself (in German) is available as a RealPlayer video here. [Note: Particularly explicit portions of the video are "blurred," but it is NSFW, and some readers may find the video disturbing.] There is a transcript of the report, also in German, here (Google translation here). The story focuses on depictions of apparent in-world sexual contact between adult avatars and avatars with child-like appearances, but also claims that photographs of real-life child sexual abuse have been made available in Second Life.

Unlike the United States (where the Supreme Court, in 2002, struck down a law prohibiting “virtual” child pornography on First Amendment free speech grounds), many countries criminalize non-photographic images that appear to depict minors in sexual situations.

A complete survey of the law in this field is beyond the scope of this article, but a quick search reveals that a number of countries, including at least the U.K., Canada, Germany, the Netherlands, Australia, and Italy, have laws on the books banning virtual child pornography.

Any discussion of this issue inevitably leads to the fact that in virtual worlds, a small number of residents engage in “sexual ageplay” involving avatars that appear to be minors, but which are (presumably) controlled by adults.

There is an ongoing debate over whether sexual ageplay is a healthy outlet for adult fantasies, or a scourge of virtual worlds. That debate is not the subject of this article, but for the record, sexual ageplay practitioners differentiate themselves from pedophiles (who, they point out, are sexually interested in actual children, rather than in adults who roleplay children). Right or wrong, there is little question that sexual ageplay in virtual worlds does violate various countries’ laws prohibiting virtual child pornography.

This story has been building since early 2007. Several months ago, The Register (a U.K. based publication), reported that a Dutch prosecutor was considering bringing charges against citizens of the Netherlands who engaged in sexual ageplay in Second Life.

Shortly after that story broke, the Second Life Heraldreported that Linden Lab had begun quietly contacting residents who appeared to be running businesses related to sexual ageplay, with the following message:

Dear Second Life Resident:

Linden Lab would like to inform you that your land or business is possibly not in compliance with Second Life’s Community Standards. The depiction of sexual activity involving minors may violate real-world laws in some areas, and the Second Life community as a whole has made it clear that it views such behavior to be broadly offensive. Linden Lab chooses not to allow the advertising or promotion of age play or related activities in any public forum — including in-world textures, classified ads, the Second Life forums, or parcel descriptions.

Advertisements, promotions, or descriptions of such activities must be removed to avoid account sanctions.

Any account asserting an age that does not meet Second Life’s minimum age of eligibility will be closed.

After Linden Lab began enforcing this policy, there was little news for several months. One subsequent SLH article claimed to show that Linden Lab’s efforts were futile, but other than that article, a little gnashing of teeth in online forums, and a well-researched summary piece from CNET’s Daniel Terdiman a few weeks ago, the issue largely disappeared.

Commentary

So why the new attention now? Three reasons: First, there’s a video this time. Second, there’s an allegation that besides simulated child pornography involving avatars, actual photographs of child sexual abuse were also shown in-world. Third, non-US citizens now account for over 80% of the Second Life population.

While there’s room for debate over whether computer-generated depictions of minors in sexual situations should be illegal or should, as the U.S. Supreme Court found, be protected as free speech, there’s simply no room for debate about actual child pornography in a civilized society. In light of the seriousness of this round of allegations, Linden Lab is wise to break with its usual hands-off approach to in-world problems and cooperate fully with the authorities.

[Note: The morality of sexual ageplay in virtual worlds is not the subject of this article. Readers are encouraged to leave comments regarding that issue elsewhere. Comments on the legality of the practice are, of course, welcome.]

Thank you for posting the wording of the Ageplay notice sent out earlier this year, for it seems to contradict the current Linden stance that sexualized ageplay is illegal and against the ToS as opposed to the advertising of such.
Also, in dealing with the now banned ageplaying residents, it raises an issue as to “whose law applies.” If the residents in question were Americans, then what they were doing was not illegal. This was not mentioned in the Linden post or the other websites. Reporting the typists to the police will not help if what they were doing where they were doing it is not a crime. I think this situation raises more jurisdictional issues as to whose law applies than the illegality of the practice itself.

An aside: It’s sort of appalling how much of this site has recently been devoted to sex crimes in virtual worlds, specifically, Second Life. I’m almost thinking I ought to rename it Second Life: Special Victims Unit. The top post is on “virtual rape,” of all things (thanks to Regina Lynn linking to it on her “Sex Drive” column on Wired) and it will probably remain so for months, given the traffic that drove. I’m not complaining about the traffic, mind you, but it’s sort of sad.

Anyway, Jessica – I think the Linden Lab argument would be that even if simulated sexual relations between adult and child avatars is not illegal in the U.S., “the Second Life community as a whole has made it clear that it views such behavior to be broadly offensive” (as they said in their note to ageplay business owners). And since these two people had the misfortune of playing out their fantasy on German television, they’re in the public eye, so they are getting banned. Because all legal hand-wringing aside, the truth is that Linden Lab can ban whoever it feels like, whenever it feels like it. This one is going to cost them PR points so they’re doing whatever they can to fix it, fair or not.

While I’m frankly sick of writing about sex in virtual worlds, I’ve got some ideas on this real-life/virtual-world legal crossover percolating right now, and hope to post something more concrete in the next few weeks. For a preview, look at Castronova’s thoughts on “interration” as a concept to parallel “incorporation.” A Google search will get you there. He has absolutely nailed this relationship, and the problems it raises, as far as I’m concerned.

Of course, I don’t mind writting about sex and legal issues so long as I use my avatar name as an alias.

I think my problem with the banning is that it wasn’t defined as suspension or termination. After all, if this activity was allowed prior to German TV coming in, it seems bad faith on the Linden’s part to completely terminate their account. (I didn’t see a specific post on the SL police blotter.)

I’m just wondering what constitutionally protected form of free expression is next on the vaguely-defined-inconsistently-enforced-arbitrarily-declared-”broadly offensive” banlist docket, soon to be excreted out of Linden Market-Values-Supercede-American-Values Lab. I guess only time -and European shock-news coverage- will tell…

Warning: the previous paragraph was intentionally provocative. If you did not wish to experience provactiveness, please immediately forget you read it and possibly consider forgetting how to read at all, so that you never have to feel that way again in the future. Alcohol may help.

“Linden Lab can ban whoever it feels like, whenever it feels like it”

I suppose that means Benjamin Duranske is unconvinced of intellectual and “virtual property” property rights (and particularly equitable balance principles concerning ToS violations) and ToS unconscionability arguments laid out in a case like Bragg v Linden? Such is especially troubling, considering Linden Research Inc appears to claim that residents’ US dollar (not $L) account balances also qualify as “any other data [that may be] deleted, altered or moved or transferred at any time for any reason or no reason in Linden’s sole discretion.” (p.13, Linden motion to compel arbitration, 11/14/06).

I think you misread the sentence. I’m not passing judgment on the situation, I’m stating a fact. Until a case challenging virtual world EULAs (or, much less likely, legislation) changes the legal landscape, it is a fact that Linden Lab can ban whoever it likes, whenever it feels like it.

A debate about whether all of this is a good or a bad thing would be interesting, but I’ll leave it to others to pick up here if they want to. I suspect that (bombast and baiting aside) most users would actually agree with YourWorld’s view.

As for “constitutionally protected,” it is important to be precise. The First Amendment protects speech from government interference, it doesn’t guarantee that there won’t be forums where certain types of speech are prohibited. A basketball player can get ejected from a game for saying certain things to the referee; his First Amendment rights aren’t being trampled on. Same thing with a club — a patron can be removed for any reason or no reason at all (wearing tennis shoes, for instance). No First Amendment issue there either. It is true that the player has a First Amendment right to curse at the umps, and the patron has a First Amendment right to wear tennis shoes, but all that means is that the government can’t prohibit cursing or wearing tennis shoes. The First Amendment offers a lot of protection, but the fact that speech is broadly protected from government interference doesn’t mean that it can’t be prohibited anyway (by agreement, rule, or even fiat) in a private forum.

First, I will fully concede the point about private entities having that right, generally; my point was to merely opine that it is such a right, and one which Linden chose to chose on Wednesday to prohibit (at least to the extent it believes it can), and I strongly disagree with this decision. However, here, I do say to the extent it believes it can because I’ve seen some argument by Little Gray of the SL ACLU, applying the PruneYard Shopping Center precedent out of California to the Linden service, the applicable principles from which I personally find interesting and worthy of consideration. So, here, if the California-based service indeed would qualify a one of the private areas mentioned, perhaps they do have free exercise rights on the private service, subject to reasonable limitations.
(http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center)

This is a particular unknown considering the apparent property interests of the users involved. Linden is treading on uncharted waters a bit with the Second Life service, at least in my view, as Linden attempts to wrestle obviously conflicting issues of resident property ownership (content and land) vs Linden property ownership (servers and service). Some of the conflicts of course are covered in Bragg.

I do want to make a further point that is probably so far off into the future, it’s probably not worth discussing as a legal point, but I’ll tie it back to merely my disappointment in Wednesday’s decision. Linden constantly pushes the idea that it’s services potential is to be analogous to the web, 3D internet, just hosting service, ISP, or whatever one wants to call it, open sourcing, standardizing protocols, being an open platform for everybody. Well, if that’s the case I begin to wonder if Linden wants to be some yet to be legislatively defined service, a sister or a cousin away from today’s telecommunications service providers, since I think I’ve even heard heard Philip/Cory Linden compare the future open service to ISPs. Well, if that’s the case, however many years from now, do they want to be the future equivalent of a private carrier or a common carrier? And if it wants to be a common carrier, what exact authorities and responsibilities will it have with respect to dealing with and respecting users’ rights?

And even if this would not ever come to pass, even the thought of it-the idea of a great public utility not fully controlled by Linden-would have continued to guide Linden, even under foreign pressures they experience now. I would have hoped Linden would not do what it did, in applying interpretations of freedom restricting foreign laws to ALL residents, including American residents in the manner it did. In doing so, I believe it gave up part of its goal and -certainly for me- part of the attraction and belief that it did have that potential.

On a last point, I just want to note misgivings about that Bragg link: unfortunately, that the analysis from Second Life lnsider comes from a writer who

1) is and always has been decidedly immediately pro-Linden, regardless of the facts, not only regarding Bragg v Linden, but also almost any anti-Linden news coming from outside sources (see example http://tinyurl.com/yq3rju)

2) based a bit of analysis on an assertion that Linden made then later corrected (Bragg owning real estate in California), but made no later reanalysis, nor even an attempt to notify readers of Linden’s correction

3) took 8 full articles before notifying readers that Mr Bragg was the one making the documents available, yet didn’t even bother to mention the actual website on which s/he found the links (see below)

So there’s a few things there that I consider personal misgivings that I believe your readers should be aware of. And I say none of this to denigrate the analysis (indeed it’s quite thorough for the particular perspective being portrayed), but rather, simply to make the note that although it’s perhaps quite obvious, there is no attempt at balance. It was at least thorough for what it was: telling a story with a point of view for the entertainment of readers.

Although Benjamin raises a sigificant point. Previously, Little Gray of the Second Life ACLU (not associated with the RL ACLU) was arguing that Second Life was more like a public accomodation as opposed to a private club. Which means that SL may have to allow more freedom of expression than your local lodge.

Two points to offer in the analysis of “virtual child pornography.” In trying to find the details of the German law in English, I checked out wikipedia which detailed that the UK law on virtual child pornography deals with altered images that look like “pseudo-realistic photographs.” The activities on SL would not fall under those standards. But I have not found German statutes in English so I can say what the standard is for “virtual child pornography” and whether that includes drawings of children having sex, even if it is not truly children having sex or something that looks like real children having sex.

The other point is that child pornography can be considered obscene material if not child pornography itself. If it can be found to violate the Miller test under US law, then it would still be illegal. This would be if roleplay can be considered content. Also because it is mostly about a pruient interest, it could fall under anti-obscenity laws.

Thanks for the link to Bragg’s site, and the note about the possible lack of objectivity/citation/etc. on the link to the SLI page. I wasn’t aware that there’s a controversy over that piece, but good to know.

Claiming that users have a proprietary interest in their SecondLife content is, frankly, bizarre. The users have a [i]contractual[/i] right (the contract being the Terms of Service) to share in the use of Linden Labs’ property, the servers (and the rest of the communications architecture). Those servers run simulations of things which, if they were not simulated, but real, would be the kinds of things that people would own, such as land and chattels. It is patently absurd to argue that a contractual right to use server resources is radically different because, and only because, the server resources that one is using are simulations of ownable things (equally as absurd as claiming that everyone who uses a flight simulator ought to have a pilot’s licence).

The biggest problem I have with the “virtual child pornography” issue is Linden Lab taking it upon itself (or at least appearing to, reading its blog post) to

1) declare, with certainty, that some particular activity is illegal in any and all jurisdictions with access to Second Life, absent an actual, clear indication, given (for US citizens at least)
a) a Supreme Court decision appearing to directly dispute this
b) the uncertainty of outcomes of obscenity tests, particularly since
1) presumably juries in residents’ home jurisdictions (where transmission originates) would decide what is obscene and therefore illegal, NOT Linden Labs
2) a jury in jurisdiction X may find some Second Life activity obscene, while a jury in Y may not conclude the same for identical activity, whether it’s this kind of activity, or some other kind in the future

So for Linden Labs to take it upon itself to act as arbiter over all possible jurisdictions and declare its outcome for a situation that is absolutely unclear in its own country of operation, in my mind, is wrong. Linden may claim that it has contractual authority to close accounts for any or no reason. That is one thing. But what it appears to have done, instead (again, by my reading of the blog post), is to attribute its decision to ban two individuals (in the first paragraph) on its declaration that their conduct was illegal (later in the post, as otherwise Linden doesn’t it doesn’t explain its reason for banning). Though, admittedly, it doesn’t explicitly state the nationality of the first two individuals.

Linden states “If Linden Lab learns that someone is engaging in, advertising or promoting locations or activities involving the depiction of sexual or lewd acts involving minors, their account will be terminated…” Even if residents create machinima/plays of Romeo and Juliet/Traffic/American Beauty (as specifically mentioned in Ashcroft v Free Speech Coalition)? Linden again doesn’t caveat and doesn’t defer to authorized adjudicators on questions of legality. This is entirely aside from the glaringly obvious fact that Linden previously did not make this same legal determination, and only did so after an enormous wave of bad media attention in conjunction with greater financial interest in Europe.

But perhaps a group of individuals decides to protest the Iraq war, and in accordance with the TOS, creates a simulation of soldiers dropping bombs on civilians’ homes, leaving bloodied and mutilated bodies of virtual women and children strewn about across their private, mature parcel/sim. Is Linden going to declare in knows with certainty that they’ve acted illegally, thereby justifying a decision to ban them? Or perhaps another group does so with terrorists bodies? Will Linden firmly believe there is illegal conduct, or will residents lose their property/financial interests for political/moral reasons?

About the proprietary interests, I believe if it were not for Linden’s continuous campaign to claim residents have property interests in their service, it would not be an issue. Virtual land simulating real land doesn’t make it prima facie ownable, no. I believe this may be a special case -a case created by Linden itself- only for the reason that Linden explicitly allows something to be ownable and transfers that ownership to its users. Linden makes clear in its public statements an intention for users to own something, though not the data itself, and not the servers themselves. I’m not sure what it is, or to what extent that ownership affords real world rights and I’m also not sure even Linden knows. Yet, I’m also not unwilling to believe that representations of Linden’s (owned) data of a virtual ‘thing’ ultimately (after courts sort it out) be viewed as nebulously a concept as that of “intellectual” property (which of course, neither exists, but only in one’s mind). Otherwise, what is it that Linden claims residents own?

Sorry, a last point, my last comment was based on the assumption that you meant to say “virtual child pornography” here:
“The other point is that [virtual] child pornography can be considered obscene material if not child pornography itself”

If that’s is indeed the case, then to make a further point:
I believe the entire issue is that the federal definition of “child pornography” requires that an actual child exist or include a depiction “indistinguishable from” a child (Linden Lab can only hope SL will one day produce a world indistinguishable from reality) (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002256—-000-.html).

[...] This plays into several of my favorite themes: the enabling power of the internet and modern day technology balanced against the responsible use of that power (and who defines “responsible use?”); virtual “depictions” of actions that would be crimes in the real world (I remember discussions on a proposed to law to ban depictions of child pornography, even when the “child” in question did not actually exist–it opens up new avenues for discussion, and for concern. Is something so inherently evil that you cannot graphically express it? If so, why is it not illegal to write about it? Lolita, anyone?). Stay tuned as these and related issues will undoubted remain front and center for the foreseeable future. Ms. Lynn also points us to a neat post summarizing some of these issues. [...]

[...] Readers with good memories will recall that about three months ago, VB ran a short piece on an odd item from the international desk. China planned to impose a new law which would require that online computer games generate half-points after three hours of play, and zero points after five hours. Games that did not comply would be shut down. Three months ago I made fun of it. Now, I’m worried about what it might mean for Second Life. It’s amazing what a child porn allegation from Germany and an ill-considered policy statement from Linden Lab can do to change one’s attitude. [...]

[...] Different countries have different approaches to both exposure (and participation) of minors in sexual activity (whether virtual or physical) and to the presentation of sexually explicit content involving either minors or others portraying minors (virtual or physical). Facing negative press and potential legal problems in Germany, Linden Lab took steps to remove ageplay from Second Life a few months ago. Though a statute criminalizing virtual child pornography was deemed unconstitutional in the United States (Aschroft v. Free Speech Coalition), U.S. citizens (who would otherwise be allowed to engage in ageplay in Second Life) are barred from it due to the laws of foreign nations, including German and Israeli law. The implication is a constitutional tort: legal speech is barred by the private sector. This constitutes private laws made by the proprietor of the virtual world. I am concerned that these private laws may bar otherwise legal speech. [...]

Leave a Reply

Notes on Comments: Your first comment must be manually approved, but after it is you'll be able to post freely with the same name and email. You can use some HTML (<a> <b> <i> <blockquote> etc.) but know that VB's spam blocker holds posts with five or more <a> links. VB supports gravatars. Got a gravatar? Use the associated email and it'll show with your comment. Need one? Set it up for free here.

Name (required)

Mail (hidden) (required)

Website

Notify me of followup comments via e-mail

About Virtually Blind

From early 2007 to late 2008, Virtually Blind covered legal news, issues, and events that impact virtual worlds, video games, and the 3D internet. The site is no longer updated, though it remains online as a research resource.

Posts and comments on VB were and are not offered as legal advice, and are not confidential attorney-client communication. Posts and comments reflect only the opinion of the author, and do not necessarily represent the opinion of VB's editor, other contributors, sponsors, or any author's employer.